ArtIII.S1.3.1.6 Due Process Limitations on Contempt Power: Right to Jury Trial

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Originally, the right to a jury trial was not available in criminal contempt cases. 1 But the Court held in Cheff v. Schnackenberg, 2 that a defendant is entitled to trial by jury when the punishment in a criminal contempt case in federal court is more than the sentence for a petty offense, traditionally six months. Although the ruling was made pursuant to the Supreme Court's supervisory powers and was thus inapplicable to state courts and presumably subject to legislative revision, two years later the Court held that the Constitution also requires jury trials in criminal contempt cases in which the offense was more than a petty one. 3 Whether an offense is petty or not is determined by the maximum sentence authorized by the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses and more serious ones at six months' imprisonment. Although this case involved an indirect criminal contempt (willful petitioning to admit to probate a will known to be falsely prepared) the majority in dictum indicated that even in cases of direct contempt a jury will be required in appropriate instances. When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power.4 Presumably, there is no equivalent right to a jury trial in civil contempt cases, 5 although one could spend much more time in jail pursuant to a judgment of civil contempt than one could for most criminal contempts. 6 The Court has, however, expanded the right to jury trials in federal civil cases on nonconstitutional grounds. 7


  1.  Jump to essay-1See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett, 376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas in those cases prepared the ground for the Court's later reversal. On the issue, see Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in 'Inferior' Federal Courts – A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1042-1048 (1924).
  2.  Jump to essay-2384 U.S. 373 (1966).
  3.  Jump to essay-3Bloom v. Illinois, 391 U.S. 194 (1968). See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are criminal and thus require jury trials).
  4.  Jump to essay-4391 U.S. at 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974), the Court held a jury trial to be required when the trial judge awaits the conclusion of the proceeding and then imposes separate contempt sentences in which the total aggregated more than six months even though no sentence for more than six months was imposed for any single act of contempt. For a tentative essay at defining a petty offense when a fine is levied, see Muniz v. Hoffman, 422 U.S. 454, 475-77 (1975). In International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994), the Court continued to reserve the question of the distinction between petty and serious contempt fines, because of the size of the fine in that case.
  5.  Jump to essay-5The Sixth Amendment is applicable only to criminal cases and the Seventh to suits at common law, but the due process clause is available if needed.
  6.  Jump to essay-6Note that under 28 U.S.C. § 1826 a recalcitrant witness before a grand jury may be imprisoned for the term of the grand jury, which can be 36 months. 18 U.S.C. § 3331(a).
  7.  Jump to essay-7E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); Dairy Queen v. Wood, 369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 (1970). However, the Court's expansion of jury trial rights may have halted with McKeiver v. Pennsylvania, 403 U.S. 528 (1971).